JUDGMENT Hon’ble Kalyan Jyoti Sengupta, J. By this writ petition, the petitioner has challenged two impugned orders dated 7th January, 2003 and 3rd September, 2004 respectively. By the first mentioned order, the disciplinary authority imposed punishment of compulsory retirement, and by the second mentioned order, the appellate authority has dismissed departmental appeal of the petitioner. 2. Learned counsel for the respondents has raised preliminary objection drawing my attention to the portion of the counter affidavit that petitioner had and still has alternative remedy to approach Central Industrial Tribunal. Whether provision of Industrial Disputes Act applies to the petitioner is not examined by this Court at the moment. Assuming it does, I hold the petitioner can not be non-suited from this proceedings. It is settled position of law, the existence of alternative remedy is not an automatic ouster of writ court jurisdiction. The power of High Court under Article 226 of the Constitution of India is plenary one and this power emanates from the Constitution and this cannot be ousted by any authority or by any simple legislation, to say the least by the Industrial Disputes Act. However, it has now become trite and consistently it has been held by the Apex Court and High Courts that this power is exercised by the High Court with self imposed restraint and restriction aiming at to filter unimportant matters those do not involve any intricated question of law including constitutional one. To clarify above position, if the Writ Court thinks at the threshold to admit the matter to be heard itself without any qualification, and invites affidavits, the plea subsequently taken in affidavit by the adversary should obviously be ignored. Therefore, point raised by the learned counsel for the respondents has to be overruled because of the fact in this case as it reflects from the order of the learned Single Judge. On 30th November, 2004, the learned Single Judge of this Court passed this order: - “Heard. Admit. Learned counsel for respondents prays for and is granted four weeks time to file counter affidavit. List thereafter.” 3. Thus, it is clear this Court decided to hear the writ petition without any reservation and even respondents by necessary implication called upon the writ court to render decision on this issue seeking time to file affidavit, and did not take this plea of alternative remedy at that stage at all. List thereafter.” 3. Thus, it is clear this Court decided to hear the writ petition without any reservation and even respondents by necessary implication called upon the writ court to render decision on this issue seeking time to file affidavit, and did not take this plea of alternative remedy at that stage at all. It was open for the respondents at the threshold to raise this point. Had this point been raised, the writ court would have decided whether the matter should be decided by itself or it would be relegated to statutory forum. Thus, preliminary objection is hereby overruled. I now proceed to decide the matter on merit. 4. The fact is required to be narrated in this case. The petitioner at the relevant point of time, namely, in the year 2002 was clerk-cum-cashier in Baijrao Branch of the respondents Bank. On 16th January, 2002, he was served with the chargesheet with allegation of misappropriation with regard to deposit in the savings bank account No. 4843 held by one Shri K.G. Verma and misappropriation of Rs. 5000/- against deposit in current account maintained by M/s Maheshwari Automobiles. Therefore, there are two sets of charges of misappropriation in connection with the Bank Accounts maintained by the two constituents. Charge was responded denying the same. The respondent Bank, not being satisfied with the explanation, appointed Officer who held inquiry giving petitioner opportunity of being heard, examining witnesses, receiving documents from the Bank and thereafter appreciating evidence, he found that the petitioner was not guilty in connection with charge “A”. However, he found the petitioner being guilty in connection with Charge-B. The disciplinary authority, after hearing the petitioner, imposed punishment of compulsory retirement at the age of 40 years. The petitioner approached the appellate authority unsuccessfully, namely, Deputy General Manager. Hence, the writ petition was filed. 5. In the writ petition, it has been stated that the Inquiry Officer could not have recorded the findings of guilt of the petitioner so far as it relates to the charge-B under any circumstance. The evidence and material lead to one conclusion that the petitioner should have been exonerated. Therefore, the inquiry officer proceeded with the intellectually biased mind. He has ignored the evidence of the complainant who has disproved the charge of misappropriation. The evidence and material lead to one conclusion that the petitioner should have been exonerated. Therefore, the inquiry officer proceeded with the intellectually biased mind. He has ignored the evidence of the complainant who has disproved the charge of misappropriation. In one word, the conclusion of the disciplinary authority is based on his own conjecture and surmise and did not have any support of the evidence at all. 6. In the counter affidavit, it has been stated that the disciplinary authority after analyzing evidence has come to the findings that the petitioner is guilty. Whether evidence is sufficient or not is not the consideration of the writ court in exercise of power of judicial review. When the evidence is on record and opportunity of hearing was given the writ court will not interfere with the decision at all. 7. Learned counsel for the petitioner while highlighting the facts mentioned in the petition and taking me to the report of the inquiry officer submits that the complainant at whose instance the proceedings was initiated has himself written a letter subsequently, that he did not have any complaint whatsoever and he had withdrawn earlier compliant. This fact has been recorded by the Enquiry Officer himself. The person who was deputed by the complainant to deposit the cash has not come forward to say that he had handed over excess amount. 8. The Inquiry Officer has also exceeded his jurisdiction with a motive to record the guilt of the petitioner in the guise of getting clarification of the complainant on his withdrawal of complaint within few days. Even after the clarification so given by the complainant, the relevant and supportive portion of evidence of the complainant has not been taken into consideration rather deliberately omitted. 9. Therefore, the findings of the Inquiry Officer which is the foundation of the imposition of punishment, is perverse. Even quantum of punishment is shockingly disproportionate to the alleged misconduct as why extreme punishment was warranted has not been discussed nor dealt with reasons in the impugned order of punishment. Therefore, he urges this Court to do justice quashing these orders. 10. Learned counsel for the respondents Bank submits that this Court should not interfere with this findings nor with the orders. Therefore, he urges this Court to do justice quashing these orders. 10. Learned counsel for the respondents Bank submits that this Court should not interfere with this findings nor with the orders. It is a charge of misappropriation and an employee being guilty of this misconduct should not remain in service as the image and reputation of the Bank would be at stake if this employee is kept on roll of the bank employment. 11. I have considered the contention of the learned counsel for the parties, and I have examined the report of the Inquiry Officer. I have examined the chargesheet and document forming basis of issuance of charge and subsequent document, and the report of the inquiry officer and the impugned orders of both the authorities. 12. It appears, the petitioner was chargesheeted on two accounts as I have already indicated. Charge-B is said to have been proved. Therefore, this court is to examine whether charge-B can be said to have been proved with pre-ponderance of probability or not. Ifthere is no such standard of proof, it would be clear case of without evidence. In pursuit of this, I just narrate the gist of the compliant of the complainant being the basis of chargesheet. Date of complaint was 14th June, 2001. In this complaint, it is said that on 22nd March, 2001, the complainant had deputed his own employee one Sudhir Jaitley to deposit cash amount contained in 24 packets and each packet contained one hundred numbers of 10 (ten) denomination of Indian Currency note. However, out of 24 packets, 19 packets were deposited and receipts were obtained and remaining 5 packets each having Rs.100 were not deposited. The amount of Rs.5000/- is alleged to have been received by the petitioner, who promised that the said amount would be adjusted later on. Thereafter, the excess amount which is alleged to have been received by him was neither adjusted nor returned rather after 15 or 20 days from the date of deposit, he is alleged to have visited the petrol pump of the complainant and had a talk with another employee Chiranjeev and told that the above excess amount would be rectified and/or adjusted by 26th or 27th April, 2001. Inspite of that nothing has been done. Therefore, it is clear that Sudhir Jaitley went to Bank to deposit the above money. Inspite of that nothing has been done. Therefore, it is clear that Sudhir Jaitley went to Bank to deposit the above money. He has not made complaint to his employer either in writing or orally, atleast it could not be found in the complaint itself. Another employee Chiranjeev never made any statement in writing to complainant being his employer or to Bank that the petitioner had assured that things would be regularized. Thereafter, on 16th June, 2001, namely, after two days from the date of making compliant, the complainant himself has unequivocally said that everything has been rectified and there had been no complaint against the petitioner. 13. The disciplinary authority had chosen to issue chargesheet after more than six months after receipt of letter dated 14th June, 2001. I fail to understand why the Bank Manager decided to issue chagesheet relying on the first complaint and chose to ignore the second letter being withdrawal of the complaint. There is no explanation why more than six months time was taken to issue chargesheet. Vindictiveness of the mind of a person cannot be established by direct proof. It could be proved by act and conduct propelled by state of mind of a particular person. I am of the view that act of vindictiveness is also clear from the fact that disciplinary authority had issued chargesheet for alleged misappropriation of third party’s money not that of Bank. Even the third party has not bothered in making any F.I.R. with the police station. What promoted to issue chargesheet even after receipt of the withdrawal of complaint of misappropriation. I hold chargesheet itself is vitiated with biasd and prejudicial mind. This should have been dropped immediately by the Inquiry Officer who has failed to do so. I constraint to say that the Inquiry Officer is also vindictive. 14. Now, I shall deal with the Inquiry officer’s findings. Inquiry Officer of course recorded evidence with fair mind and he has received evidence as MEX-10 being letter dated 16th June, 2001 whereby and whereunder complaint was withdrawn within two days. He has also called complainant to prove. He has not called Sudhir Jaitley who is alleged to have deposited the amount. The complainant did not deposit the amount. Document of deposit shows deposit of Rs. 1,39,000/-. Therefore, going by the document, it cannot be said that the petitioner has any occasion to misappropriate the money. He has also called complainant to prove. He has not called Sudhir Jaitley who is alleged to have deposited the amount. The complainant did not deposit the amount. Document of deposit shows deposit of Rs. 1,39,000/-. Therefore, going by the document, it cannot be said that the petitioner has any occasion to misappropriate the money. He was the best person to tell the real fact as the complainant did not go personally. Complainant at the most had deposed what he had heard from Sudhir Jaitley. Inquiry Officer failed to discharge duty in order to record the guilt without calling Sudhir Jaitely. Even the complainant himself has exonerated the petitioner with clarification as sought for with reference to the subsequent letter. I record the relevant portion of the report of the Inquiry Officer: - “Vide MEX-9, the MW-3 had made complaint about the excess cash remitted by him on 22-03-2001 and vide MEX-10, he had withdrawn the compliant stating that the error of Rs.5000/- has been rectified by him and as on 16-06-2001, there is no anomaly in their cash book. As the contents of MEX-9 and MEX-10 were contradictory, I sought clarification from MW-3 in the matter. MW-3 clarified that – “In MEX-9, I have referred an error of remitting excess cash – a mistake on my part, Vide MEX-10, I came to know that the error has been rectified.”” 15. Going by the statement and deposition made before him he still concludes charge is proved. I feel unless a person was singularly adversely prejudiced as against the petitioner he could not record such findings. Therefore, I conclude that not only there has been no proof of the charge with any standard, rather it has disapproved totally the version of bank. I think this is the highest degree of perversity in recording this finding of guilt. The disciplinary authority has not hesitated to accept the same and for that matter gives his own version who has issued such chargesheet inspite of receipt of withdrawal of the complaint. It is quite natural that he would support his misplaced chargesheet with this material, namely, perverse findings of the inquiry officer. Even he did not bother whether in the facts and circumstances of this case extreme punishment of compulsory retirement at the age of 40 years of a man is warranted or not. It is quite natural that he would support his misplaced chargesheet with this material, namely, perverse findings of the inquiry officer. Even he did not bother whether in the facts and circumstances of this case extreme punishment of compulsory retirement at the age of 40 years of a man is warranted or not. He did not consider his past record to record this extreme punishment. All that I can say it is not an independent mind of administrator. He has acted like prosecutor to see that the petitioner is thrown out of employment by hook or by crook. 16. In view of the above discussion and findings, I do not hesitate to set aside the chargesheet of the Inquiry Officer and punishment orders of both the authorities and I do hereby. I hold that in case of this nature atleast charge of misappropriation would not have been made to harass the petitioner in order to destroy the prime period of his life. 17. I allow the writ petition and direct the respondents to reinstate the petitioner forthwith with all backwages. However, 50 percent part of the salary be paid as backwages. The respondents shall pay costs of this petition assessed at @ Rs.10,000/- to the petitioner. Even the question of proportionalism in a matter of punishment is not dealt with. On this ground also this punishment cannot be sustained. In the event, the petitioner by filing affidavit establishes that he did not engage himself gainfully during this period from the date of punishment till the date of passing of this order to maintain himself, then on receipt of this proof, the Bank shall pay full salary as backwages.